TaxTMI 
TaxTMI 
2003 (8) TMI 574
X X X X Extracts X X X X
X X X X Extracts X X X X
....se the amount of damage they do to the society and as a result of these fanatic acts of misguided people innocent lives are lost, distrust in the minds of communities replaces love and affection for others. Neighbours belonging to different communities who have lived like brothers for ages start viewing each other with suspicion and hatred. Their compassion is first replaced by a sense of diabolic designs. The object of these misguided people - the terrorists - seems to be to spread a message of terror and strike fear in the hearts of the citizens. The present case amply reflects the designs of some people to perpetrate such acts. The temple of democracy in the country - the Parliament - did not also escape the wrath of such people. Whoever did it, wanted to disturb the equilibrium in the minds of the citizens. The millions of peace loving citizens in the country are threatened to be put on a ransom by a group of people. 2. The background scenario with which the case at hand is concerned reveals the macabre designs of a group of such people. The Kingpin of the whole case is a person called Ahmed Umar Sayeed Sheikh (described shortly as 'Umar Sheikh') a British national a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e sentenced to death under Section 3(2)(1) of the TADA Act and a fine of Rs. 50,000/- each. For the said offence, others were convicted and sentenced to life imprisonment and a fine of Rs. 50,000/- each. A-2 and A-7 were sentenced to 10 years imprisonment for harbouring and concealing the terrorists under Section 3(4) of the TADA Act. All the six accused persons were found guilty for the offence punishable under Sections 3(1) and 3(5) of the TADA Act. Nazir Khan (A-1) and Naser Mohmood Sodozey (A-8) were also convicted under Section 14 of the Foreigners Act for having entered India without valid permission and valid documents. They were each to undergo 5 years rigorous imprisonment and a fine of Rs. 25,000/- each. Since the death sentence awarded to the three accused appellants is subject to confirmation by this Court, Death Reference No. 1 of 2003 has been made to this Court. 6. To continue the narration of facts as presented by the prosecution, Umar Sheikh visited several places in Pakistan and met Abdul Rauf and other militants associated with Harkat-ul-Mujahiddin (in short 'HUM'). He came in contact with other militant organizations like Jamet-e-Islamic and Al-e-Hade....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tographs demand letters were sent to British Embassy and American Embassy, and to various news agencies (in India and abroad), newspapers and the demand was that the Government of India should release 10 hard core terrorists from jails. Copies of the demands were faxed to President, Prime Minister and other dignitaries. Three days' time was given for meeting the demands and the threat was given that in case the demands were not met, the kidnapped foreigners would be killed. As indicated above, it was just a fortunate and providential co-incidence that led the revelation of the conspiracy hatched. On 31.10.1994 a police party headed by Station Officer, Satya Dev Yadav of Police Station, Mussourie near Ghaziabad, had gone to Nai Basti, Mussourie in connection with the investigation of a theft case. Since they found a person running suspiciously they entered the house from which the person had jumped out and ran away. They found the door bolted from inside and when nobody respondent, they broke open the door and entered the house. An American national was found chained inside the room with a spike. He was unchained and released and on enquiry he disclosed how he had been abducted ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m the house where they were confined. The Police swung into action. On interrogation, the details of hide outs were found out and on raiding them huge quantity of arms and ammunitions including AK-47 rifle were seized. The name of the two persons involved in the operation i.e. Mohmood @ Ayub (A-7) and Nasar Mohmood (A-8) surfaced during investigation. Rest were declared proclaimed offenders as they could not be arrested in spite of best efforts. However, three of the proclaimed offenders were later arrested. A-2 was arrested by Assam Police while A-7 was arrested by Jammu and Kashmir Police and A-8 was arrested by Srinagar Police. During investigation, it came to light that not only the effort was of kidnapping the foreigners who had already kept as hostages, but intention was to kidnap many more so that greater pressure can be used for getting release of 10 hard core terrorists who were the members of HUA. 8. Since accused Umar Sheikh was released from Tihar Jail along with other militants no charge was framed against him but charges were framed against rest of the accused persons under various provisions. 9. During investigation, the statements of the accused persons were r....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sion, and the present appellants cannot be held to be guilty. The ingredients of Section 3(2)(i), it was submitted are non-existent and therefore the conviction under these provisions is unfounded. All the accused are small pawn in a big plot and do not deserve the harsh sentence imposed. More so when some of the accused have been given life sentence for similar offences, no differential treatment to award death sentence in case of three can be countenanced. The alleged kidnapped persons have not appeared as witnesses and statements made by them during investigation cannot be utilized. 11. Rebutting the submissions, Mr. K.K. Sood, learned Additional Solicitor General submitted that the evidence, materials and circumstances are sufficient to establish involvement of each of the accused. There has been no retraction from the confessional statements, the procedural requirements have been meticulously followed, the statements were voluntary and at no point of time any objection was made relating to recording of the confessional statements. The recoveries of arms and ammunitions provide ample substantiation to the confessions made. Even though in law there is no requirement for any c....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e society; because in different parts of the country affected by militancy, a terrorist is projected as a hero by a group and often even by many misguided youth. As noted at the outset, it is not possible to precisely define "terrorism". Finding a definition of "terrorism" has haunted countries for decades. A first attempt to arrive at an internationally acceptable definition was made under the League of Nations, but the convention drafted in 1937 never came into existence. The UN Member States still have no agreed-upon definition. Terminology consensus would, however, be necessary for a single comprehensive convention on terrorism, which some countries favour in place of the present 12 piecemeal conventions and protocols. The lack of agreement on a definition of terrorism has been a major obstacle to meaningful international countermeasures. Cynics have often commented that one State's "terrorist" is another State's "freedom fighter". If terrorism is defined strictly in terms of attacks of non-military targets, a number of attacks on military installations and soldiers' residences could not be included in the statistics. In order to cut through the Gordian definitional....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to define. Acts of terrorism conjure emotional responses in the victims (those hurt by the violence and those affected by the fear) as well as in the practitioners. Even the U.S. Government cannot agree on one single definition of uniform and universal application. The old adage, "One man's terrorist is another man's freedom fighter" is still alive and well. Listed below are several definitions of terrorism used by the Federal Bureau of Investigation. Terrorism is the use or threatened use of force designed to bring about political change. - Brian Jenkins Terrorism constitutes the illegitimate use of force to achieve a political objective when innocent people are targeted. - Walter Laqueur. Terrorism is the premeditated, deliberate, systematic murder, mayhem, and threatening of the innocent to create fear and intimidation in order to gain a political or tactical advantage, usually to influence an audience. - James M. Poland Terrorism is the unlawful use or threat of violence against persons or property to further political or social objectives. It is usually intended to intimidate or coerce a government, individua....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... There is no difference between the mode of proof of the offence of conspiracy and that of any other offence, it can be established by direct or circumstantial evidence. (See: Bhagwan Swarup Lal Bishan Lal etc.etc. v. State of Maharashtra AIR 1965 SC 682 18. Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion in an elevated place open to public view. Direct evidence in proof of a conspiracy is seldom available, offence of conspiracy can be proved by either direct or circumstantial evidence. It is not always possible to give affirmative evidence about the date of the formation of the criminal conspiracy, about the persons who took part in the formation of the conspiracy, about the object, which the objectors set before themselves as the object of conspiracy, and about the manner in which the object of conspiracy is to be carried out, all this is necessarily a matter of inference. 19. The provisions of Section 120A and 120B, IPC have brought the law of conspiracy in India in line with the English Law by making the overt act unessential when the conspiracy is to commit any punishable offence. The English Law on this matter is well settled. Ru....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion because in such a situation, criminal conspiracy is established by proving such an agreement. Where the conspiracy alleged is with regard to commission of a serious crime of the nature as contemplated in Section 120B read with the proviso to Sub-section (2) of Section 120A, then in that event mere proof of an agreement between the accused for commission of such a crime alone is enough to bring about a conviction under Section 120B and the proof of any overt act by the accused or by any one of them would not be necessary. The provisions, in such a situation, do not require that each and every person who is a party to the conspiracy must do some overt act towards the fulfillment of the object of conspiracy, the essential ingredient being an agreement between the conspirators to commit the crime and if these requirement sand ingredients are established, the act would fall within the trapping of the provisions contained in Section 120B [See: S.C. Bahri v. State of Bihar 1994CriLJ3271 ] 21. The conspiracies are not hatched in open, by their nature, they are secretly planned, they can be proved even by circumstantial evidence, the lack of direct evidence relating to conspiracy has....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cipant at every stage. It is necessary that they should agree for design or object of the conspiracy. Conspiracy is conceived as having three elements: (1) agreement; (2) between two or more persons by whom the agreement is effected; and (3) a criminal object, which may be either the ultimate aim of the agreement, or may constitute the means, or one of the means by which that aim is to be accomplished. It is immaterial whether this is found in the ultimate objects. The common law definition of 'criminal conspiracy' was stated first by Lord Denman in Jones' case that an indictment for conspiracy must "charge a conspiracy to do na unlawful act by unlawful means" and was elaborated by Willies, J. on behalf of the judges while referring the question to the House of Lords in Mulcahy v. Reg and House of Lords in unanimous decision reiterated in Quinn v. Leathem: 'A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rest in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w that it was not voluntary. Strong reliance is placed on State v. Nalini 1999CriLJ3124 to contend that corroboration is necessary. It is to be noted that the legislature has set different standards of admissibility of a confessional statement made by an accused under TADA Act from those made in other criminal proceedings, A confessional statement recorded by a police officer not below the rank of Superintendent of Police under Section 15 of TADA Act is admissible, while it is not so admissible unless made to the Magistrate under Section 25 of the Evidence Act. It appears, consideration of a confessional statement of an accused to a police officer except to the extent permitted under Section 27 of the Evidence Act is not permissible. These aspects are noted by this Court in Sahib Singh v. State of Haryana 1997CriLJ3956 and Gurdeep Singh v. State (Delhi Admn.) 1999CriLJ4573 . There is one common feature, both in Section 15 of TADA Act and Section 24 of the Evidence Act that the confession has to be voluntary. Section 24 of the Evidence Act interdicts a confession, if it appears to the Court to be the result of any inducement, threat or promise in certain conditions. The principle th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....speak the truth which at a given time predominates in the heart of the confessor which impels him to speak out the truth. Internal compulsion of the conscience to speak out the truth normally emerges when one is in despondency or in a perilous situation when he wants to shed his cloak of guilt and nothing but disclosing the truth would dawn on him. It sometimes becomes so powerful that he is ready to face all consequences for clearing his heart. 25. As was observed in Nalini's case (supra) TADA Act was enacted to meet any extraordinary situation existing in the country. Its departure from the law relating to confession as contained in the Evidence Act is deliberate. Section 24 of the Evidence Act deals with confession caused by inducements, threat or promise, which is irrelevant in criminal proceedings. The expression 'confession' has not been defined in the Evidence Act. Broadly speaking, it is an admission made at any time by a person charged with crime, stating or suggesting the inference that he committed that crime. Law relating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Proce....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... "60 (2): Confessional statement before the police officer under Section 15 of the TADA Act is substantive evidence and it can be relied upon in the trial of such person or co-accused, abettor or conspirator for an offence punishable under the Act or the Rules. The police officer before recording the confession has to observe the requirement of Sub-section (2) of Section 15. Irregularities here and there would not make such confessional statement inadmissible in evidence. If the legislature in its wisdom has provided after considering the situation prevailing in the society that such confessional statement can be used as evidence, it would not be just, reasonable and prudent to water down the scheme of the Act on the assumption that the said statement was recorded under duress or was not recorded truly by the officer concerned in whom faith it is reposed. It is true that there may be some cases where the power is misused by the authority concerned. But such contention can be raised in almost all cases and it would be for the Court to decide to what extent the said statement is to be used, Ideal goal may be: confessional statement is made by the accused as repentance for....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d by each of the accused in the conspiracy. It was submitted that the activities cannot be treated as an offence against the State. Chapter VI of IPC relates to offence of the State. 30. The Trial Court has convicted the accused under Sections 121A, 122 and 124 IPC. For convicting the accused persons under the aforesaid provisions, the trial Court has relied on the fact that the accused persons were trying to overawe, the Government of India by criminal force and to bring out hatred and contempt in the people of India and to arouse dissatisfaction in a section of people in India against the Government of India established by laws and collected materials and arms for the aforesaid offences. 31. The line dividing preaching disaffection towards the Government and legitimate political activity in a democratic set up cannot be neatly drawn. Where legitimate political criticism of the Government in power ends and disaffection begins, cannot be ascertained with precision. The demarcating line is thin and wavy. 32. The Indian Law Commissioners in their Second Report dated 24.6.1847 had observed We conceive the term "wages war against the Government'', naturally to import a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rcumstances of aggravation, have not been holden to amount to levying war within the statute." 38. It is the fundamental right of every citizen to have his own political theories and ideas and to propagate them and work for their establishment so long as he does not seek to do so by force and violence or contravene any provision of law. Thus where the pledge of a Society amounted only to an undertaking to propagate, the political faith that capitalism and private ownership are dangerous to the advancement of society and work to bring about the end of capitalism and private ownership and the establishment of a socialist State for which others are already working under the lead of the working classes, it was held that it was open to the members of the Society to achieve these objects by all peaceful means, ceaselessly fighting public opinion that might be against them and opposing those who desired the continuance of the existing order of society and the present Government; that it would also be legitimate to presume that they desired a change in the existing Government so that they could carry out their programme and policy; that the mere use of the words 'fight' and '....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the other, which is said to be levied against the majesty of the king, or, in other words, against him in his regal capacity; as when a multitude rise and assemble to attain by force and violence any object of a general public nature; that is levying war against the majesty of the king; and most reasonably so held, because it tends to dissolve all the bonds of society, to destroy property, and to overturn government; and by force or arms, to restrain the king from reigning according to law." 41. An assembly armed and arrayed in a warlike manner for any treasonable purpose is bellum levatum, though not bellum percussum. Lifting and inarching are sufficient overt acts without coming to a battle or action. 42. "No amount of violence, however great, and with whatever circumstances of a warlike kind it may be attended, will make an attack by one subject on another high treason. On the other hand, any amount of violence, however insignificant, directed against the King will be high treason, and as soon as violence has any political objects, it is impossible to say that it is not directed against the king, in the sense of being armed opposition to the lawful exercise of his power w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....surrection, and stir up opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion. "Sedition has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitutions of the realm, and generally all endeavours to promote public disorder. 45. In the aforesaid analysis, the offences punishable under Sections 121A, 122, 124A are clearly established and sufficiently and properly stand substantiated, on the overwhelming materials available on record. 46. In order to bring the offences within the parameters of Section 3(2)(i) of TADA Act, the death sentence is permissible to be imposed when the act has resulted in the death of any person. Under Clause (ii) of Sub-section (2) of Section 3, in any other case, the maximum sentence is imprisonment for life. In the case at hand except the killing of two police officials, no, other death h....